National Federation of Federal Employees, Local 1332 (Union) and Army Materiel Development and Readiness Command Headquarters (Activity)

[ v07 p612 ] 07:0612(95)AR
The decision of the Authority follows:

7 FLRA No. 95
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 1332
Union
and
UNITED STATES ARMY
MATERIEL DEVELOPMENT
AND READINESS
COMMAND HEADQUARTERS
Activity
Case No. O-AR-93
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR J. ROSS HUNTER, JR., FILED BY THE AGENCY UNDER SECTION
7112(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR PART 2425). THE UNION FILED AN OPPOSITION.
ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER INVOLVES THE
GRIEVANT'S REQUEST FOR REPROMOTION CONSIDERATION FOR A PARTICULAR
POSITION VACANCY ANNOUNCED AT GS-5/6/7/8 WITH A TARGET GRADE OF GS-9.
THE GRIEVANT IS A GS-7 WHO IS ENTITLED TO SPECIAL CONSIDERATION FOR
REPROMOTION TO A GS-8 POSITION. WHEN SHE WAS NOTIFIED THAT SHE HAD NOT
BEEN CONSIDERED FOR THE POSITION, SHE FILED A GRIEVANCE. AS A RESULT OF
HER GRIEVANCE, THE ACTIVITY HAD THE RATING AND RANKING PANEL
RECONSTRUCTED AND THIS TIME THE GRIEVANT WAS RATED QUALIFIED BUT WAS NOT
CERTIFIED AS AMONG THE BEST QUALIFIED. HOWEVER, THE RECONSTRUCTION DID
NOT SATISFACTORILY RESOLVE THE GRIEVANCE AND IT WAS ULTIMATELY SUBMITTED
TO ARBITRATION.
THE ARBITRATOR RULED THAT THE GRIEVANT WAS ENTITLED TO HAVE BEEN
GIVEN SPECIAL CONSIDERATION FOR REPROMOTION IN THIS CASE, BUT HE FOUND
THAT SUCH CONSIDERATION HAD BEEN DENIED HER. ON THE BASIS OF THIS
FINDING, THE ARBITRATOR, AS HIS AWARD, OFFERED THE ACTIVITY THE
ALTERNATIVE OF EITHER GRANTING THE GRIEVANT SPECIAL CONSIDERATION FOR
REPROMOTION TO THE NEXT APPROPRIATE VACANCY IN EITHER A GS-8 POSITION OR
GS-8 WITH A TARGET GRADE OF GS-9 POSITION OR OF RERUNNING THE PROMOTION
ACTION WITH THE GRIEVANT GRANTED REPROMOTION CONSIDERATION.
BECAUSE OF A DISPUTE BETWEEN THE PARTIES CONCERNING THE EXTENT OF THE
GRIEVANT'S ENTITLEMENT TO SPECIAL CONSIDERATION FOR REPROMOTION, A
SUPPLEMENTAL AWARD WAS ISSUED BY THE ARBITRATOR. IN THIS AWARD THE
ARBITRATOR SPECIFICALLY ADDRESSED THE ACTIVITY'S CONTENTION THAT THE
GRIEVANT COULD NOT PROPERLY BE GRANTED SPECIAL CONSIDERATION FOR
REPROMOTION TO A POSITION WITH A TARGET GRADE OF GS-9 BECAUSE THE GRADE
FROM WHICH SHE WAS DEMOTED WAS GS-8. THE ARBITRATOR REJECTED THE
ACTIVITY'S CONTENTION, RULING THAT THE FEDERAL PERSONNEL MANUAL (FPM)
DID NOT PRECLUDE THE ACTIVITY FROM GRANTING SPECIAL CONSIDERATION TO AN
EMPLOYEE IN SUCH CASES. THE ARBITRATOR REASONED THAT REPROMOTION
CONSIDERATION IS APPLICABLE TO SUCH POSITIONS BECAUSE THE EMPLOYEE HAS
NO ENTITLEMENT OR RIGHT TO A NONCOMPETITIVE PROMOTION TO THE TARGET
GRADE. RATHER, THE NONCOMPETITIVE PROMOTION MUST BE BASED ON A
DEMONSTRATION BY THE EMPLOYEE OF BEING QUALIFIED FOR THE PROMOTION.
AGAIN, THE ARBITRATOR OFFERED ALTERNATIVES TO RESOLVE THE DISPUTE: THAT
THE ACTIVITY GRANT THE GRIEVANT SPECIAL CONSIDERATION FOR REPROMOTION TO
THE NEXT APPROPRIATE VACANCY IN A GS-8 POSITION OR GS-8 WITH A TARGET
GRADE OF GS-9 POSITION, OR THAT THE ACTIVITY RERUN THE PROMOTION ACTION,
OR THAT THE PARTIES DELEGATE TO THE ARBITRATOR THE AUTHORITY TO RERUN
THE PROMOTION ACTION WITH THE ARBITRATOR FUNCTIONING AS THE RATING AND
RANKING PANEL AND THE SELECTING OFFICIAL.
IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S
AWARD VIOLATES FPM CHAPTER 335. IN SUPPORT OF THIS EXCEPTION THE AGENCY
ASSERTS THAT ALTHOUGH "REPROMOTION IS WARRANTED TO THE GRADE LEVEL FROM
WHICH THE EMPLOYEE WAS DEMOTED, IT WOULD VIOLATE THE INTENT OF THE
REGULATION TO CONFER AN ADDITIONAL ENTITLEMENT TO NONCOMPETITIVE
PROMOTION TO A GRADE HIGHER THAN THAT PREVIOUSLY HELD." CONSEQUENTLY,
THE AGENCY ARGUES THAT THE ARBITRATOR'S ORDER INCLUDING GS-8 POSITIONS
WITH A TARGET GRADE OF GS-9 AMONG THE POSITIONS FOR WHICH THE GRIEVANT
IS TO BE GRANTED SPECIAL CONSIDERATION FOR REPROMOTION IS CONTRARY TO
THE FEDERAL PERSONNEL MANUAL.
HOWEVER, THE AGENCY HAS NOT IN ANY MANNER ESTABLISHED THAT THE
ARBITRATOR'S AWARD IS CONTRARY TO THE REQUIREMENTS OF FPM CHAPTER 335.
NOTHING IN THAT CHAPTER SPECIFICALLY PROHIBITS GRANTING A REPROMOTION
ELIGIBLE A NONCOMPETITIVE PROMOTION TO A POSITION WITH MORE PROMOTION
POTENTIAL THAN THE POSITION FROM WHICH HE OR SHE WAS DEMOTED. CONTRARY
TO THE AGENCY'S ASSERTIONS, THERE IS NO PROHIBITION IN THE FPM AGAINST
SPECIAL CONSIDERATION FOR, OR NONCOMPETITIVE REPROMOTION TO, A POSITION
WITH MORE PROMOTION POTENTIAL THAN THAT FROM WHICH THE EMPLOYEE WAS
DEMOTED AND THE AGENCY'S ARGUMENTS REGARDING THE "INTENT" OF THE FPM
PROVIDE NO BASIS FOR FINDING OTHERWISE. BECAUSE THE AGENCY HAS FAILED
TO ESTABLISH THAT THE SPECIAL CONSIDERATION FOR REPROMOTION ORDERED BY
THE ARBITRATOR IS PROHIBITED BY THE FPM, ITS EXCEPTION PROVIDES NO BASIS
FOR FINDING THE AWARD DEFICIENT.
IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS
CONTRARY TO LAW BECAUSE OF THE ARBITRATOR'S OFFER TO THE PARTIES IN HIS
SUPPLEMENTAL AWARD OF THE OPTION OF DELEGATING TO HIM THE AUTHORITY OF
THE RATING PANEL AND SELECTING OFFICIAL. SPECIFICALLY, THE AGENCY
ARGUES THAT SUCH DELEGATION WOULD BE CONTRARY TO MANAGEMENT'S RIGHT
UNDER SECTION 7106(A) OF THE STATUTE TO HIRE, ASSIGN, AND DIRECT
EMPLOYEES AND TO MAKE SELECTIONS AND WOULD BE CONTRARY TO 5 U.S.C. 2105
WHICH DESIGNATES THOSE WHO MAY PROPERLY MAKE APPOINTMENTS TO THE FEDERAL
CIVIL SERVICE.
HOWEVER, THIS EXCEPTION PROVIDES NO BASIS ON WHICH THE AWARD MAY BE
FOUND DEFICIENT. AS HAS BEEN NOTED, THE DELEGATION TO WHICH THE AGENCY
TAKES EXCEPTION WAS ONLY ONE OF SEVERAL ALTERNATIVES THAT THE ARBITRATOR
DETERMINED WOULD APPROPRIATELY RESOLVE THIS DISPUTE. HE ALSO DETERMINED
THAT GRANTING THE GRIEVANT REPROMOTION CONSIDERATION FOR THE NEXT
APPROPRIATE VACANCY WOULD LIKEWISE SUITABLY RESOLVE THIS MATTER, AND THE
AGENCY'S EXCEPTION TO THAT PROVISION OF THE AWARD HAS BEEN FOUND TO
PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT. CONSEQUENTLY, WHILE
THE AUTHORITY AGREES WITH THE AGENCY THAT THE SPECIFIED DELEGATION WOULD
BE CONTRARY TO LAW AND THEREFORE THE AGENCY CANNOT LEGALLY COMPLY WITH
THIS ALTERNATIVE, THE AUTHORITY FINDS THAT THE MERE OFFER OF SUCH
DELEGATION AS ONE AVAILABLE DISPOSITION FAILS TO ESTABLISH THAT THE
AWARD IS CONTRARY TO LAW WHEN ANOTHER OF THE ALTERNATIVES OFFERED TO THE
ACTIVITY PROVIDES FOR A PROPER RESOLUTION OF THE DISPUTE. IN SUCH
CIRCUMSTANCES THERE IS NO DEMONSTRATION THAT IMPLEMENTATION OF THE AWARD
CANNOT BE FULLY CONSISTENT WITH LAW.
FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.
ISSUED, WASHINGTON, D.C., JANUARY 7, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ 5 U.S.C. 7122(A) PROVIDES:
(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
ARBITRATION (OTHER THAN AN AWARD RELATING TO A MAT